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Roan drilling foes bring ozone rule into fight

A federal proposal to tighten restrictions on ozone pollution bolsters the contention of environmental groups that the Bureau of Land Management violated the law in leasing the Roan Plateau for natural gas development in 2008, they say in new court documents.

Attorneys for environmental groups, which sued the BLM over the leasing in 2008, note in a court filing that the Environmental Protection Agency has proposed reducing the national standard for ozone from 0.075 parts per million to somewhere between 0.06 and 0.07 parts per million because of concerns about its effect on respiratory function.

“The proposed rule change supports Plaintiffs’ claim that the Bureau of Land Management violated the National Environmental Policy Act … by failing to analyze the ozone pollution that will result from the leases challenged in this case,” the attorneys wrote.

They said the proposal “further demonstrates that ozone pollution represents a significant public health concern in Garfield and Rio Blanco Counties, regardless of whether the current 0.075 ppm standard is violated.”

They also said past ozone readings suggest the counties may violate the proposed stricter standard if it is adopted.

In a written response, government attorneys said the proposed rule “is neither pertinent nor significant since it has no bearing on the leasing decisions that were made for the Roan Plateau Planning Area.”

At issue are oil and gas leases the BLM auctioned for $114 million for 55,000 acres on and around the Roan Plateau northwest of Rifle.

Government attorneys said the EPA proposal, “even if finalized, would not have retroactive effect,” making it irrelevant. They said that under the law, the BLM’s action must be reviewed based “on the evidence before the agency at the time it acted.”

In their own response, attorneys for Bill Barrett Corp., OXY USA Inc., Williams Production RMT and Antero Resources, the companies holding the leases, said the BLM “was required to prepare environmental analysis under the regulatory scheme in effect at the time the decision was made and on the basis of the record before the agency at that time.”

The companies cited a U.S. Supreme Court ruling concluding that requiring agencies to supplement environmental review every time new information comes forward after the review is finalized “would render agency decisionmaking intractable, always awaiting new information only to find the new information outdated by the time a decision is made.”

Parties in the case have been involved in court-ordered settlement talks. Another round of talks is scheduled for March 5.